Legal Question in Real Estate Law in New York
survey stake
We haved owned our property for 28 years. It is enclosed by a cedar hedge. Our east neighbor had a survey done in 1988 and found he owns 30 ft beyond his hedge into what ''looks'' like my yard. I had an instrument survey and had the corners marked by the licensed surveyor. It agreed with the neighbor's survey. The west neighbor refuses to beleive that 38 ft of what ''looks'' like his yard is really mine. I told him he still owns as much as he always did, it is just shifted to the west, as mine was. He pulled out the surveyor's stake and threw it on my front lawn. We called the police. He admitted to them that he removed it and will remove it again if we replace it. The police did not cite him because they say he had no criminal 'intent' because he believes the property the stake was on was his. They did agree that it is not correct to remove the stake and stated so in their written report. Is this in fact a violation or can he continue to remove the surveyor's markers? I want to fence my property in line with codes, 6 inches inside the property line. Incidentally, he bought his property in June, 1996.
3 Answers from Attorneys
Re: survey stake
If your neighbor uses uses your property in an open, obvious, notorious, and adverse way for more than 7 years, there could ultimately be an issue.
Other than that, YOU continue to use your own property.. and if he uses it, WRITE to him to tel him to stop.
Good Luck
RRG
Re: survey stake
I concur with the previous authors. Your failure to take action promptly could result in loss of that portion of your property by adverse possession (open and notorious use of the property as one's own). Since both surveys concur that the lines actually are west of their apparent locations, you might need a court declaration to protect your property. This could also enjoin your neighbor from removing stakes or markers designating the proper boundary lines. I suggest you start the suit before placing the fence, so there are no problems once the fence is erected. It appears that no one had surveys done when they purchased their properties, or these facts would have come to light earlier. This is a lesson for anyone purchasing real estate; to have a survey done before the closing. If you had a survey and it was done incorrectly, you may have a claim against the original surveyor and/or your title company for the costs incurred in the current suit. In any event, you must take some action to correct this problem before the adverse possession statute limitation period expires, or you may lose your property rights and the right to properly construct the fence.
Re: survey stake
His removal of the stake, or any unauthorized entry onto your property, may be a civil trespass. Similarly, you are entitled to enter onto and treat the property that belongs to you as your own. The fact that the property appears to belong to your neighbor to the west and that he uses as his own could be a problem, as Mr. Groezinger states. However, the statute of limitations (which creates "adverse possession") is ten years. If you can't resolve the issue with your neighbor, you may want to go to court to regain possession of the strip or at least get a declaratory judgment. Feel free to call me at 212-367-9167 to discuss this further.
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